In re Welding Fume Products Liability Litigation, 1:03-CV-17000.
| Decision Date | 30 October 2007 |
| Docket Number | No. 1:03-CV-17000.,MDL No. 1535.,1:03-CV-17000. |
| Citation | 526 F.Supp.2d 775 |
| Parties | In re WELDING FUME PRODUCTS LIABILITY LITIGATION. |
| Court | U.S. District Court — Northern District of Ohio |
Currently pending in this Multi-District Litigation ("MDL") are about 1,775 cases. In all of these lawsuits, the plaintiffs allege: (1) they inhaled fumes given off by welding rods; (2) these fumes contained manganese; (3) this manganese caused them permanent neurological injury and other harm; and (4) the defendants knew or should have known that the use of welding rods would cause these damages. Although the complaints in these cases and the theories of liability they recite are not identical, the plaintiffs generally bring claims sounding in strict product liability, negligence, fraud, and conspiracy. The gravamen of the complaints is that the defendants "failed to warn" the plaintiffs of the health hazards posed by inhaling welding rod fumes containing manganese and, in fact, conspired to affirmatively conceal these hazards from those engaged in the welding process.
One of the defendants named in these complaints is Caterpillar, Inc. The thrust of the plaintiffs' claims against Caterpillar is that: (1) Caterpillar was a huge consumer of welding rods and employed many welders; (2) like the welding rod manufacturer defendants, Caterpillar knew that users of welding rods could suffer neurological injury; and (3) Caterpillar conspired with the manufacturer defendants to conceal the hazards of welding rods, in order to avoid the cost of respirators and other equipment necessary to protect its welder-employees.
Defendant Caterpillar now seeks summary judgment in its favor on all claims, in every case pending in this MDL (master docket no. 1979). For the reasons stated below, the motion is GRANTED, and Caterpillar is DISMISSED as a party in this litigation.1
Beginning in September of 2003, Caterpillar filed a series of motions, pursuant to Fed.R.Civ.P. 12(b)(6) and 12(c), seeking to dismiss all of the claims brought against it by all of the plaintiffs in this MDL. The primary arguments asserted in these motions were that: "(1) the claims for conspiracy to commit fraud fail because the complaints do not plead fraud with sufficient particularity; (2) the negligence claims fail because the complaints fail to identify a duty owed by [Caterpillar] to the plaintiffs; and (3) the product liability claims fail because [Caterpillar] did not manufacture or distribute any welding rod products, which is the only basis for strict product liability."2 The Court denied these motions "without prejudice to [Caterpillar's] assertion of similar arguments in summary judgment motions" because Caterpillar's "arguments, to varying degrees, rel[ied] on matters outside of the pleadings."3
In assessing Caterpillar's arguments, however, the Court noted that the plaintiffs had used generic allegations, which did not fully apprise Caterpillar or the other defendants regarding their alleged role in the claimed conspiracy: "While plaintiffs have alleged the `what' of certain supposedly conspiratorial acts in great detail, they have alleged the `who' in virtually no detail."4 The Court chose, at that juncture, "to assess the sufficiency of the plaintiffs' claims with substantial leniency," and allowed the plaintiffs to pursue discovery against all defendants in an attempt to prove their conspiracy and other claims. The, Court warned, however, that it would pay high scrutiny to plaintiffs' proofs if Caterpillar later filed summary judgment motions:
the Court's leniency[, however,] is temporary: the Court intends to be much more exacting toward plaintiffs when reviewing any defense motions for summary judgment. The defendants are correct in their assertion that many of the allegations, especially those that are generic, paint only a sketchy connection between a given defendant and the plaintiffs' alleged harm. The defendants are right to insist that plaintiffs must define their theories of liability more clearly, and show each of the elements of each of their claims against each defendant. Although the Court concludes the plaintiffs' claims survive (barely, in some cases) the defendants' Rule 12 motions, plaintiffs' oppositions to motions for summary judgment will have to meet fully the higher Rule 56 standard.5
Since that time, Caterpillar has produced to plaintiffs in discovery thousands of pages of documents, answered many dozens of interrogatories, and presented several witnesses for deposition. After discovery was completed, Caterpillar filed the instant summary judgment motion, again asserting there is no basis for a judgment against them on any of the claims asserted by any of the plaintiffs in this MDL. With benefit of discovery, plaintiffs have responded with a much more detailed explanation of Caterpillar's actions and precisely how plaintiffs believe Caterpillar took part in the alleged conspiracy. This discovery is summarized below. Ultimately, however, the Court concludes that, although Caterpillar was associating with welding rod manufacturers against which plaintiffs have colorable claims, there is insufficient evidence upon which a reasonable jury could conclude that Caterpillar conspired with those other defendants to harm the plaintiffs.
To give context to the Court's factual recitation, the Court first repeats here the plaintiffs' own characterization of the conspiracy claims they assert against Caterpillar and the other defendants. Plaintiffs explain:
The plan of the welding rods industry was to conceal and misrepresent vital information concerning the health risks of manganese. This plan was knowing and willful. This plan had several aspects:
1. minimize the warnings on welding consumable labels
2. preclude fundamental neurological epidemiology studies on welders
3. promulgate misleading scientific information in the published literature [and]
4. oppose appropriate exposure limits of manganese emitted in welding fumes.
* * *
The motive[s] for the plan [were]:
1. to limit the costs inherent in providing a safe working environment for welders [and]
2. to maximize sales which would have otherwise been reduced because of safety issues.6
The evidence mustered by plaintiffs "to demonstrate that Caterpillar participated in a knowing, intentional and willful industry-wide effort to conceal and misrepresent the facts about the adverse health effects of manganese in welding rods" is set out by category, below.7 The following material facts are not in dispute, and are examined from the perspective most favorable to plaintiffs.
Plaintiffs assert that the conspiracy Caterpillar allegedly joined in 1972 actually began as early as the 1930s. It was in 1932 that Dr. Erich Beintker first publish ed a report titled "The Effect of Manganese During Arc Welding." Although written in German, the report was translated and came to the attention of the welding rod industry in America. Dr. Beintker was one of the first persons to suggest that exposure to manganese in welding fumes could be hazardous. The Metropolitan Life Insurance Company, in a 1937 booklet titled "Health Protection of Welders," summarized Dr. Beintker's report as follows:
Two cases of poisoning in a mild form, by manganese oxide fumes given off from the electrodes in arc welding of tanks and boilers, have been reported from Germany. The electrode used contained 0.2 percent manganese. It is stated that protective filter respirators or air helmets are necessary in tank and boiler work, although in open rooms it is improbable that these precautions will be needed.8
The Booklet went on to explain the symptoms of manganese poisoning:
Manganese is an important poison from the point of view of its effects rather than from frequency of exposure to it. Manganese has a selective action on some of the nerve centers of the brain. It causes a disease similar to paralysis agitans, which in chronic cases is seldom fatal, but which, owing to the fact that no satisfactory treatment is known, is always disabling. Prevention, therefore, is the measure to be stressed when the possibility of manganese dioxide fumes or dust is present.9
Over the course of the next few decades, other publications reiterated the warning that manganese in welding fumes could be hazardous. For example, in 1943, an industrial hygiene guide discussing welders' manganese exposure noted that 10
In response to the knowledge that welding fumes could be hazardous, members of a trade organization known as the National Electric Manufacturers Association ("NE MA") met to discuss the propriety of supplying warnings to welders. Specifically, in 1937, the members of NEMA's Electric Welding Section—many of whom were employed by the defendants in this case (but not by Caterpillar)—heard "an argument that it is advisable to avoid all possible hazards by cautioning users of the [welding] process to provide ventilation wherever necessary and that it was further desirable to set up a uniform method of calling attention to this."11 Accordingly, the members passed a resolution "to circulate among the members for approval, by letter ballot, a warning notice which should call attention to the hazards involved in breathing smoke and fumes, and suggest that adequate ventilation be provided for all welding operations."12
The record submitted by the parties does not make clear whether any such warning notice was drafted or...
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